EPA "Transport Rule" Struck Down by Court

In a 2-1 ruling, a panel of the Circuit Court of Appeals for the District of Columbia has struck down the EPA's "Transport Rule," also known as the Cross-State Air Pollution Rule, based on the EPA's exceeding the authority permitted it by statute. The two judges in the majority were appointed by George W. Bush; the dissenter by Bill Clinton.

For those interested in the specifics of the two areas in which the court found the EPA to have done so, here is the relevant text from the opinion:

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

The opinion went on the emphasize that the court is offering no opinion on the wisdom of any particular environmental policy, and -- almost seeming to apologize for this ruling -- named four cases in which "this Court has affirmed numerous EPA clean air decisions in recent years..."

The Transport Rule was a dagger aimed at the heart of the coal-powered electricity industry, the first step in President Obama's stated goal of causing electricity prices to "necessarily skyrocket."

Today's ruling should scare the EPA and other radical environmentalists deeply, particularly as it offers precedent to every court in the nation other than the Supreme Court to consider whether federal regulations violate the authority delegated to the particular bureaucracy by Congress.

It may even, and I realize that this may strike some as little different from believing in unicorns, cause regulators to rethink the aggressiveness of proposed regulations. (OK, you can stop laughing now.)

No doubt some in Congress will use this ruling to argue for increasing that authority. They are unlikely to succeed even in a Democrat-controlled Senate because coal-state and rust-belt Democrats will not support rules designed to directly or indirectly bankrupt some of their largest voting blocs.

In a somewhat frightening dissent, Circuit Court Judge Judith Rogers leads off her disagreement with the panel's majority opinion by giving multiple reasons that the court should not even have heard the case. I understand that the issue of standing is a serious one, but when a judge in the second-highest court in the nation must begin a dissent with that issue rather than the constitutional issues at hand, it becomes that much clearer how "progressivism" is a cancer that infects every branch of government, in particular by destroying whatever part of a person's brain which holds any respect for principle. The majority responds to the dissent's issues in detail, but I will leave that for interested readers to peruse for themselves.

Today was a victory in a small battle in our enormous war to curb our leviathan regulatory state. The dissenting opinion is just the latest reminder of the importance of the 2012 election for things outside of Congress, Welfare, and the P90X workout system.